Kerala High Court
Uma K vs State Of Kerala on 20 August, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 121 of 2010(S)
1. UMA K., W/O.RAMESH, NO.3, FLAT-C1,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DISTRICT MAGISTRATE AND DISTRICT
3. THE SUPERINTENDENT OF POLICE,
4. THE SUPERINTENDENT, CENTRAL PRISON,
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :20/08/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
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W.P.(Cri) No. 121 of 2010-S
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Dated this the 20th day of August, 2010
JUDGMENT
Basant,J.
This petition is filed by the petitioner for a writ of habeas corpus to direct release of her husband, Ramesh(hereinafter referred to as the detenu) who is detained as per an order dated 20/2/2010 passed by the second respondent under Section 3 of the Kerala Anti Social Activities (Prevention) Act (hereinafter referred to as the KAAPA).
2. The impugned order of detention(Ext.P1) was passed by the second respondent on the basis of a report (Ext.P4) submitted by the third respondent to the second respondent under Section 3(1) of the KAAPA. The second respondent in turn had received Ext.P5 report from his subordinate requesting him to initiate action under the KAAPA against the detenu. In W.P.(Cri) No. 121 of 2010 -: 2 :- execution of Ext.P1 order, the detenu was arrested on 22/2/2010. Order of approval (Ext.P6) under Section 3(3) of the KAPPA and the order of confirmation (Ext.P9) under Section 10(4) of the KAAPA have already been passed. The detenu thus continues in custody from 22/2/2010 and the period of detention authorised under Ext.P9 obliges him to continue in custody till 22/8/2010.
3. The detenu is proceeded against on the allegation that he is a known goonda. He is allegedly an abkari offender - a boot-legger. Reliance is placed, inter alia, on six crimes by the sponsoring and detaining authority. Tabular column given below gives the details of all the six cases which, inter alia, have been registered against the detenu.
Sl.No. Police station and crime Date of seizure Date of final report
no. Regn.
Cr.No.382/2009 - Town
south Police Station,
Palakkad u/s.55(a) of the 14 cans of spirit 35 litres Case charge sheeted on
each (about 490 litres worth 18.01.10 before JFMC III, 1 Abkari Act, Ramesh 30/07/2009 included in the array of Rs.98,000/-- concealed in the Palakkad (Ramesh arrested on accused on 10.12.099 and vehicle. 05/01/2010) report submitted to JFMC, Palakkad.
Cr.No.491/09 - Town 25 cans of illicit spirit
North P.S.Palakkad u/s.55 containing 32 litres each
2 (a) of Abkari Act. 20/10/2009 concealed in vehicle. Ramesh arrested on 31/1/2010
Cr.No.181/06 - Walayar
P.S.Palakkad - Abkari Act
during the course of 350 cans of spirit 35 litres Charge sheeted on 8/1/2010
each (total 12250 litres) (Ramesh formally arrested on
3 investigation Sections 61, 30/7/2006
63 of Abkari Act and 6/8/2008)
Section 120B of I.P.C.
added)
Cr..No.263/06 - u/s. 55(a) 340 cans of spirit, 35 litres Charge sheeted on
of Abkari Act each (total 11900 ) 28/10/2008. Formally arrested 4 01/10/06 on 31/7/2008.
W.P.(Cri) No. 121 of 2010 -: 3 :- Sl.No. Police station and crime Date of seizure Date of final report no. Regn. i) Cr.No.3/08 of Excise Dept.u/s. 55(a) of abkari Act in connection with the same incident. (ii) Cr.No.26/08 u/s. 407, Charge sheeted on 18/2/2010 420, 120-B r.w. 34 IPC on the complaint of Assist. Sales Manager, Malabar Cements. (during the course of investigation S.55 5 (a) of the Abkari Act added) (Both investigated 24/1/2008 8540 litres of spirit by C.I.of police under supervision of S.P.Palakkad- members of Special Investigating Unit Ramesh arrested on 16/7/2010 under direct control of Illicit Spirit Movement Investigation Team (ISISMIT) (Ramesh included in the array of accused on 25/4/2008 Cr.No.663/07 u/s.8(1)(2) 8925 litres of spirit kept in Charge sheeted on 18/2/2010 r/w. S.55(a) of Abkari Act 255 cans each containing 35 6 (Ramesh included in the 19/9/2007 litres concealed under Formally arrested on array of accused on cement bags in lorry. 30/7/2008 5/6/2008.
4. It will be appropriate and apposite straight away to refer to the prior history of the proceedings against the detenu. Earlier, an order of detention dated 31/10/2008 was passed by the second respondent directing the preventive detention of the detenu under Section 3 of the KAAPA. It is submitted that in execution of the said order of detention dated 31/10/2008, the detenu was actually taken into custody on the same day, i.e. 31/10/2008. The detenu continued in custody and the petitioner came before this Court with W.P.(Crl)No.449/2008 to challenge the order of detention and the continued detention of the detenu. W.P.(Cri) No. 121 of 2010 -: 4 :- By Ext.P8 judgment dated 19/2/2009 (a copy is produced as Ext.P8) another Division Bench of this Court had set aside the continued detention of the detenu on the ground that there was failure/omission to give an opportunity to the detenu to be represented by a lawyer before the Advisory Board. We may straight away refer to paragraph 33 of the said judgment which reads as follows:
"33. However, we make it clear that it will be open to the Government or the competent authority to issue fresh orders of detention if so warranted, in accordance with law. We also hasten to add that we have not considered any of the other contentions raised by the petitioners as regards the validity and legality of the two orders of detention in these two cases."
(emphasis supplied) It was a common judgment under which 2 petitions relating to preventive detention of 2 detenus were disposed of.
5. On the strength of Ext.P8 judgment, the detenu was released on 19/2/2009, it is submitted and accepted.
6. Thereafter, the detenu was allegedly involved in two more crimes which are referred to as Sl.Nos.1 and 2 in the W.P.(Cri) No. 121 of 2010 -: 5 :- tabular column given above. In Crime No.382/2009 of Town South Police Station, Palakkad, the alleged incident - of illegal transportation of 490 litres of spirit worth Rs.98,000/- concealed in a vehicle, took place on 30/7/2009. In the F.I.R. registered, complicity of the detenu was not revealed. He was brought on the array of accused on 10/12/2009. He was arrested on 5/1/2010. The final report in that case was filed on 18/1/2010. The detenu was ordered to be released on bail on 29/1/2010.
7. The next crime No.491/2009 was registered at the Town North Police Station, Palakkad. The allegation in the said F.I.R. registered on 20/10/2009 is that 25 cans of illicit spirit each containing 32 litres were transported illegally in a vehicle. In that crime also, in the F.I.R. registered, the detenu is not shown to have any complicity. He was brought on the array of accused in the course of investigation on 5/1/2010. He was arrested on 31/1/2010. The final report in that case had not been submitted on the date of the impugned order of detention, Ext.P1. By order dated 23/2/2010, the detenu was ordered to be released on bail in that crime. Before that, the impugned order of detention dated 20/2/2010 was passed and the detenu was arrested and detained on 22/2/2010. While the detenu was in custody as an accused, Ext.P5 report was submitted to the third respondent by W.P.(Cri) No. 121 of 2010 -: 6 :- his subordinate and Ext.P4 report dated 18/2/2010 under Section 3(1) was submitted to the second respondent by the third respondent.
8. Detailed arguments have been advanced before us by the learned counsel for the petitioner and the learned Director General of Prosecutions. The learned counsel for the petitioner contends that the impugned order of detention and the continued detention of the detenu is legally not justified and is liable to be set aside. Various grounds are urged. Grounds of challenge can be summarised as follows:
1) The sponsoring and detaining authorities erred grossly in placing reliance on events prior to the earlier order of detention dated 31/10/2008 which was set aside by Ext.P8 judgment of this Court.
2) The former objective satisfaction as well as the latter subjective satisfaction could not have been validly entertained by the detaining authority in the facts and circumstances of this case.
9. Ground No.1. The learned counsel for the petitioner Sri.R.Anil strenuously contends that the sponsoring and W.P.(Cri) No. 121 of 2010 -: 7 :- detaining authorities erred grossly and misdirected themselves in law in choosing to place reliance on the events and incidents which took place prior to the earlier order of detention dated 31/10/2008. Counsel argues that in the light of the well settled principles of law, the detaining authority did not have the legal competence to take cognisance of events prior to 31/10/2008 on the basis of which the earlier order of detention was passed. The learned counsel for the petitioner in this context places reliance on the decision of the three Judge Bench of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, (A.I.R.1985 S.C.697). The counsel also relies on the decision in C.B. Kahar v. N.L. Kalna (A.I.R. 1989 S.C.1234) in which Ibrahim (supra) has been followed. The counsel further relies on the decision in Praseetha v. State of Kerala (2009(4)K.H.C. 382 (DB)) in which both earlier precedents of the Supreme Court have been referred to and followed.
10. The counsel places particular reliance on paragraph-12 of the decision in C.B. Kahar v. N.L. Kalna (AIR 1989 SC 1234) which we extract below:
"It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the W.P.(Cri) No. 121 of 2010 -: 8 :- period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule it nullifies the entire order."
(emphasis supplied) The learned counsel for the petitioner submits that in view of the binding dictum in the said decisions, it is impermissible for the detaining authority to place reliance on pre 31/10/08 incidents on the basis of which the earlier order of detention was passed which order of detention was set aside in Ext.P8 judgment.
11. The learned counsel for the petitioner in order to further support this contention points out that even if all the allegations raised in the earlier order of detention dated 31/10/08 were held to be correct, the obligation of the detenu W.P.(Cri) No. 121 of 2010 -: 9 :- would have been to undergo preventive detention only for a period of six months from 31/10/08. That period could not have, at any rate, exceeded six months. He had actually undergone detention from 31/10/08 to 19/2/09. If because of Ext.P8 judgment, the earlier order of detention and all the reasons which were pressed into service to support such order of detention were to be ignored, the detenu will now have to suffer a fresh period of preventive detention for a further period of six months notwithstanding the fact that he has already undergone detention for a period of about 4 months from 31/10/08 to 19/2/09. This would work out injustice unintended by the statute and the constitutional provisions. This circumstance is additionally relied on by the learned counsel for the petitioner to request this Court to take the view which has already been taken in Ibrahim Bachu Bafan v. State of Gujarat (AIR 1985 SC
697), C.B Kahar v. N.L. Kalna (AIR 1989 SC 1234) and Praseetha v. State of Kerala (2009 (4) KHC 382 [DB]).
12. These submissions of the learned counsel for the petitioner do appear to us to be impressive. The learned Director General of Prosecutions does not dispute the propositions of law; but contends that in the light of paragraph- 33 of Ext.P8 judgment which we have already extracted above, W.P.(Cri) No. 121 of 2010 -: 10 :- the option of the authorities to pass a fresh order of detention on the earlier grounds is not in any way fettered. The learned D.G.P. points out that the sole rationale of Ext.P8 judgment was the omission/failure/refusal to make the services of a lawyer available to the detenu when his case came up for consideration before the Advisory Board. On merits, the matter was not considered at all by this Court in Ext.P8. The observations in paragraph-33 of Ext.P8 must make the crucial distinction in this case and even if the detaining authority had relied on pre 31/10/08 incidents/circumstances, they cannot be held to vitiate the present order of detention, contends the learned counsel.
13. We are bound by the dictum in Ibrahim Bachu Bafan, C.B Kahar and Praseetha (supra). When once a constitutional court in exercise of its powers to issue high prerogative writs sets aside an order of detention it is indisputable that the events/incidents which instilled the subjective satisfaction cannot be relied upon afresh to pass a fresh order of detention. We find absolutely no doubt on that proposition of law. We take note of the supplementary argument advanced by the learned counsel for the petitioner to support the very same conclusion. If this Court were to choose to accept the arguments of the learned D.G.P., it would lead to the ridiculous consequence that for W.P.(Cri) No. 121 of 2010 -: 11 :- having succeeded in Ext.P8 proceedings the detenu will have to undergo detention for a further period of six months in addition to the detention for a period of about 4 months already undergone earlier. If he had not chosen to challenge the order, his woes would have ended with detention for a period of 6 months. For having succeeded in the challenge he will be exposed to the further misfortune of detention afresh for a further period of 6 months afresh. That obviously cannot be the law. We are persuaded to accept that contention.
14. The only questions then is whether the observations in paragraph-33 would lift the fetter placed on the detaining authority by the three decisions referred above. It is for this purpose that we have extracted the entire paragraph-33 earlier. We have carefully gone through the said paragraph-33. We are unable to agree that the learned Judges of the Division Bench intended or anticipated that fresh orders of detention not justified by Ibrahim Bachu Bafan, C.B Kahar and Praseetha referred above, can be passed on the strength of the said observations in paragraph-33. Having found that such a fresh order on the same grounds is not justifiable on the strength of the precedential authority referred above, we are unable to agree that the observations in paragraph-33 can come to the W.P.(Cri) No. 121 of 2010 -: 12 :- rescue of the respondents. Paragraph-33 clearly saves such action only if the same is in accordance with law. The challenge on the first ground therefore succeeds.
15. Ground No.2: The learned D.G.P. contends that even if all the grounds relied on in the order of detention dated 31/10/08 were ignored and eschewed, still the order of detention can be amply supported. The learned D.G.P. submits that to decide the question whether the detenu is a known-rowdy or known goonda on the date of the fresh order of detention, the earlier incidents can also be relied on. According to the learned D.G.P., only the grounds for entertaining the subjective satisfaction relied on in the previous order of detention cannot be relied on in the subsequent order of detention. Paragraph-12 of C.B Kahar (supra) makes the position crystal clear. In clear distinction from other pieces of legislation regarding preventive detention, the KAAPA contemplates two satisfactions, commonly referred to as the initial/threshold/objective satisfaction and the latter subjective satisfaction. In order to pass a valid order of preventive detention under Sec.3 of the KAAPA both satisfactions must be entertained by the detaining authority. The former objective satisfaction is whether the proposed detenu is a known goonda or a known rowdy. To decide whether a W.P.(Cri) No. 121 of 2010 -: 13 :- detenu is a known goonda or a known rowdy - that is to entertain the requisite former objective satisfaction, the antecedents of a detenu can be considered and while considering that, all the cases which may bring him within the sweep of the expression 'known goonda/known rowdy' can also be considered. The fetters placed by the precedents above can apply only to the latter subjective satisfaction and not the initial/threshold/objective satisfaction, contends the learned D.G.P.
16. We find merit in this contention. The precedents referred above refer to the subjective satisfaction to be entertained by the detaining authority. The detention on the basis of such subjective satisfaction entertained already having been set aside by a constitutional court by issuing a high prerogative writ those grounds which earlier instilled the subjective satisfaction in the mind of the detaining authority cannot be relied on afresh. But that is not to say that those cases cannot be considered for entertaining the former objective satisfaction - as to whether the detenu is a known goonda or a known rowdy. The learned D.G.P. submits, even if the earlier grounds cannot be relied on, that to entertain the subjective satisfaction, there can be no fetter on ascertaining the factual W.P.(Cri) No. 121 of 2010 -: 14 :- position as to whether the proposed detenu is a known goonda or a known rowdy. Even Ibrahim Bachu Bafan and C.B Kahar (supra) are no authority for the proposition that the earlier events cannot be taken into consideration to entertain the former objective satisfaction, contends the learned D.G.P.
17. The learned D.G.P. in this context draws our attention to the analogy available in Sec.13 of the KAAPA which makes it clear that even when an order of detention is revoked by the Government under Sec.13 of the KAAPA or lapses by expiry of the period of detention, a further order of detention under Sec.3 of the KAAPA can be passed if the detenu continues to be a known rowdy or known goonda and a fresh incident has taken place subsequent to release by such revocation or expiry of the period of detention. We feel that the said rationale can safely be imported while considering the consequences of setting aside of an earlier order of detention by issue of high prerogative writ by a constitutional court.
18. The learned D.G.P. hence argues that, at any rate, the previous crimes can be taken into consideration by the detaining authority to decide whether the detenu is a known goonda or a known rowdy. The subsequent events after the previous order of detention can certainly be taken into consideration to decide W.P.(Cri) No. 121 of 2010 -: 15 :- whether the latter subjective satisfaction can be entertained. The learned D.G.P. submits that in this case on the basis of the events that had taken place subsequent to the earlier order of detention dated 31/10/08, the impugned order of detention can be attempted to be justified. We agree.
19. The learned D.G.P. points out that Crime Nos.382/09 and 491/09 (Sl.Nos.1 and 2 above) do themselves bring the detenu within the sweep of the expression 'known goonda' under Sec. 2(o) of the KAAPA. In the first case, final report has been filed. The nature of the offence is such that in both cases the offender/ detenu would fall within the sweep of the expression 'goonda' in Sec.2(j) of the KAAPA. In the case Sl.No.2 final report has not been filed; but relying on the decision in Elizebath George v. State of Kerala (2008 (4) KLT 425) which still remains in force and is binding on this Court, the said case Sl.No.2 can also be taken into account notwithstanding the fact that the final report has not been filed. The learned D.G.P. hence argues that whether Sl.Nos.3 to 6 are taken into account or not, Sl.Nos.1 and 2 crimes shown above in the tabular column would themselves bring the detenu within the sweep of the expression 'known goonda' under Sec.2(o) of the KAAPA.
20. We find the said contention to be acceptable. In W.P.(Cri) No. 121 of 2010 -: 16 :- Elizebath George (supra) the expression 'found on investigation' in Sec.2(o)(ii) was considered by a Division Bench and it was held that the fact that the final report had not been filed is no reason to eschew such a case under Sec. 2(o)(ii) of the KAAPA. It is true that this Bench has expressed reservations about the acceptability of the dictum in Elizebath George (supra) in two cases i.e, Sathi v. State of Kerala (2009 (2) KLD 377 [DB]) and Ranjini v. State of Kerala (2009 (3) KLT 500) and has made a reference to the Full Bench of that question in a later decision. But the fact remains that we are at the moment bound by the dictum in Elizebath George (supra).
21. In the light of the dictum in Elizebath George (supra), Crime No.491/09 can also be taken into reckoning to decide whether the detenu is a 'known goonda' under Sec.2(o)(ii) of the KAAPA. Crime No.382/09 in which final report has already been filed which is subsequent to the earlier order of detention on 31/10/08 can certainly be taken into account without any dispute. Taking Sl.Nos.1 and 2 into consideration, the detenu falls within the sweep of the expression 'known goonda' in Sec.2
(o) of the KAAPA. The view which we have taken earlier also leads us to the conclusion that even cases Nos.3 to 6 which relate to incidents that had taken place prior to 31/10/08 can W.P.(Cri) No. 121 of 2010 -: 17 :- also be taken into account to decide whether the detenu is a known goonda.
22. Lest there be any confusion, we may mention that in Crime No.491/09 (Sl.No.2) a report to array the detenu as an accused had already been submitted on 5/1/10 and after the Investigating Officer satisfied himself that the detenu has committed the offence, the detenu was arrested on 31/1/10. Thus, it is evident that the Investigating Officer had found the detenu to be guilty of the offence alleged in Crime No.491/09 bringing the case squarely within Sec.2(o)(ii) of the KAAPA.
23. The contention that the final report has not been filed in Sl.No.2 cannot, in these circumstances, be of any help to the detenu in the light of the dictum in Elizebath George (supra).
24. The above discussions lead us to the conclusion that whether Sl.Nos.3 to 6 crimes are taken into account or not the detenu was a known goonda on 20/2/10 - the date of the impugned order of detention, on the strength of cases Sl.Nos. 1 and 2. We further hold that cases 3 to 6 can also be taken into account and hence cases 1 to 6 together undoubtedly and certainly brings the detenu within the sweep of the expression 'known goonda' under Sec.2(o) of the KAAPA. We do not, in W.P.(Cri) No. 121 of 2010 -: 18 :- these circumstances, find any merit in the first contention raised under Ground No.2 that the former objective satisfaction was not validly entertained by the detaining authority before passing the impugned order of detention.
25. We now come to the latter subjective satisfaction. The learned Director General of Prosecutions had initially attempted to justify the latter subjective satisfaction on the basis of not only cases Sl.Nos.1 and 2, but also on the basis of cases Sl.Nos.3 to
6. We have already taken the view that cases Sl.Nos.3 to 6 cannot be taken into consideration for the purpose of justifying the latter subjective satisfaction under Section 3 of the KAAPA. The learned Director General of Prosecutions submits that even if cases Sl.Nos.3 to 6 are excluded from consideration totally, under Section 7(4) of the KAAPA, cases Sl.Nos.1 and 2 are absolutely sufficient and do justify the latter subjective satisfaction entertained by the detaining authority. We are now proceeding to consider whether the latter subjective satisfaction is justified on the basis of cases Sl.Nos.1 and 2 alone.
26. It is well settled that subjective satisfaction entertained by the detaining authority is not justiciable. This Court does not sit in appeal in proceedings under Art.226 of the Constitution over the decisions taken by the detaining authority on the basis W.P.(Cri) No. 121 of 2010 -: 19 :- of the materials placed before the detaining authority as to whether preventive detention is necessary or warranted. The short area of jurisdiction is to ascertain whether the subjective satisfaction is entertained properly on the basis of materials placed before the detaining authority. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or by total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set aside. But certainly if there are materials it is not open to this Court to sit in appeal over the subjective satisfaction entertained by the detaining authority.
27. That takes us to the question whether the two cases - Sl.Nos.1 and 2, can induce the requisite latter subjective satisfaction. We may, first of all, deal with the objections raised against case Sl.No.2 on the ground that final report has not been filed yet. It is trite that the law of preventive detention can be described to be the jurisprudence of suspicion. In proceedings under preventive detention laws there is no question of the detaining authority [or the court in judicial review] pronouncing whether the detenu is guilty or not of the offence alleged. From W.P.(Cri) No. 121 of 2010 -: 20 :- the past conduct of a detenu the detaining authority is to infer or predict possible future conduct on the part of the detenu and must take a decision as to whether preventive detention of the detenu is necessary to stop him from committing anti-social activity. Precedents galore to suggest that even registration of a crime is not necessary before the subjective satisfaction is entertained as to whether preventive detention is necessary. It is true that in Crime No.491/09 (Sl.No.2) final report has not been filed yet. The question whether the final reporot has been filed or not, we have already taken note of with the help of the dictum in Elizebath George (supra) is not crucially relevant even to answer the first question whether the former objective satisfaction can be entertained or not. We do not, in these circumstances, find any merit in the contention that crime Sl.No.2 must have been eschewed from consideration while deciding whether the latter subjective satisfaction can be entertained or not. That contention cannot stand. That final report has not been filed in Crime No.491/09 is certainly no reason to conclude that the said case must be excluded and eschewed by the detaining authority when the need to preventively detain the detenu was considered for the purpose of the latter subjective satisfaction under Sec.3 of the KAAPA. W.P.(Cri) No. 121 of 2010 -: 21 :-
28. The learned counsel for the petitioner raises the next contention that even if cases Sl.Nos.1 to 6 were taken into consideration and, at any rate, if cases Sl.Nos.1 and 2 alone are taken into consideration, it cannot be concluded that the activities of the alleged detenu pose any threat to public order. At worst, there is only violation of the provisions of the Abkari Act and by no stretch of imagination can it be held to be posing any threat to public order. We find no merit in this contention.
29. Before us, in this writ petition, the constitutional validity of the KAAPA is not challenged. "Anti-social activity" is defined in Sec.2(a) of the KAAPA. A person indulging in anti- social activity is defined to be a goonda under Sec.2(j). A goonda answering the descriptions given in Sec.2(o) is a known goonda. Such a known goonda if he poses a threat of committing anti- social activity again in future can be ordered to be detained under Sec.3 of the KAAPA. We find that in the absence of a challenge to the constitutional validity of the KAAPA the petitioner cannot be heard to contend that anti-social activity as defined under Sec.2 of the KAAPA does not amount to any threat to public order. Sec.3 authorises the preventive detention of a detenu if such detention is necessary "with a view to preventing such person from committing any anti-social activity within the W.P.(Cri) No. 121 of 2010 -: 22 :- State of Kerala". So reckoned the question to be considered is whether the prediction or inference drawn by the detailing authority that the detenu is likely to indulge in anti-social activity which as per the definition under Sec.2(a) includes the activity of bootlegging.
30. We have gone through the nature of allegations raised in Crimes Sl.Nos.1 and 2 as also Sl.Nos.3 to 6. By no stretch of imagination can it be held that the activities alleged in Crimes Sl.Nos.1 and 2 do not amount to anti-social activity. In these circumstances, we take the view that there is no merit in the contention that crimes Sl.Nos.1 and 2 taken separately or when taken along with Crimes Sl.Nos.3 to 6 do not reveal any threat to public order. Threat of the detenu committing anti-social activity is clearly revealed from crimes Sl.Nos.1 and 2 by themselves. Needless to say, Crimes Sl.Nos.3 to 6 also reveal that threat of the detenu indulging in anti-social activity - bootlegging particularly. The contention raised under Ground No.2 that the apprehended threat is not really a threat to public order is, in these circumstances, found to be without any merit.
31. It is next contended that, at worst, the detenu can only be said to have indulged in the activity of sale of spirit in Tamil Nadu which is not an offence there. The fact that the spirit sold W.P.(Cri) No. 121 of 2010 -: 23 :- by the detenu in Tamil Nadu has been transported into Kerala by some others cannot, at any rate, persuad the detaining authority to entertain the satisfaction that the detenu is likely to indulge in anti-social activity "within the State of Kerala". The learned counsel Sri. Anil argues that no part of the activity of the detenu can be said to threaten the possibility of anti-social activities within the State of Kerala.
32. We have considered this contention in detail. We have gone through the nature of the allegations raised in crimes Sl.Nos.1 and 2. In both these crimes the allegation under Sec.120B IPC (criminal conspiracy) has not been specifically raised. But the learned D.G.P. submits that it would be idle for the court to split up the activity into two - of that part which took place in Tamil Nadu and the other part which takes place in Kerala. It is an integral and whole transaction and by no stretch of imagination can it be held that the activity of transportation into Kerala is indulged in by the miscreants without any reference to the activity of the detenu. We find force in the contention. It would be myopic to split up the acts alleged and to say that the acts are committed at venues separated by inter- State borders and therefore the detenu is not responsible for the anti-social activity which results in Kerala. The said contention W.P.(Cri) No. 121 of 2010 -: 24 :- is found to be without any substance.
33. The learned counsel for the petitioner next contends that the detaining authority erred grossly in not adverting to the documents relevant to the offences allegedly committed in crimes Sl.Nos.1 and 2. Without any materials before the detaining authority, the detaining authority had jumped to the conclusion that the latter subjective satisfaction can be entertained. In short, the contention is that the materials placed before the detaining authority relevant to crimes Sl.Nos.1 and 2 could not have instilled the satisfaction in the mind of the detaining authority that the detenu is likely to indulge in anti- social activities in the State of Kerala.
34. The learned D.G.P. has taken pains to take us through all the relevant materials that were placed before the detaining authority and which were adverted to by the detaining authority having relevance to crimes Sl.Nos.1 and 2. The learned D.G.P. contends that the materials which were placed before the detaining authority by the sponsoring authority and referred to by the detaining authority in Ext.P3 must clearly convey that sufficient materials to induce the requisite satisfaction were available before the detaining authority and the detaining authority had referred to such materials.
W.P.(Cri) No. 121 of 2010 -: 25 :-
35. So far as crime Sl.No.1 is concerned, the learned D.G.P. points out before the detaining authority the relevant FIR (page No.109), the relevant report for inclusion of the detenu as the 4th accused in Crime (page No.119), the relevant seizure mahazar (page No.113), the charge sheet filed by the police after investigation (page Nos.136 and 137) and gist of the case (page Nos.493) were all available. These materials were sufficient to instil the requisite satisfaction in the mind of the detaining authority, contends the learned D.G.P.
36. So far as Crime Sl.No.2 is concerned, the learned D.G.P. points out that before the detaining authority, the FIR (page No.161), report to array the detenu as the 5th accused in the case (page No.167), confession of the co-accused Balagopal (page Nos.183, 185 and 186), gist of the case (pages 495 and
497) and detailed report regarding the role of the detenu (page No.533) were all available. Copies of these relevant documents referred above were furnished to the detenu and have been acknowledged by him also, it is submitted. In these circumstances, the learned D.G.P. contends that the plea that there were no sufficient relevant materials before the detaining authority to entertain the latter subjective satisfaction is untenable.
W.P.(Cri) No. 121 of 2010 -: 26 :-
37. There is no dispute that the above documents were furnished to the alleged detenu. Ext.P3 confirms the same.
38. The learned counsel for the petitioner submits that so far as crime Sl.No.1 is concerned, though the charge sheet had been furnished to the detenu, copies of all documents accompanying the charge sheet in detail were not furnished to the detenu. The learned counsel submits that the detaining authority cannot be a prisoner of the conclusions reached by the Investigating Officer in the final report filed by the Investigating Officer. All relevant materials which induce the satisfaction in the mind of the Investigating Officer must also have been furnished to the detenu. Only then the mandate under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA can be said to be satisfied. Inasmuch as the detaining authority in this case had not admittedly referred to all the documents which accompanied the charge sheet/final report under Sec.173(2) Cr.P.C., the latter subjective satisfaction is vitiated, contends the learned counsel.
39. The learned D.G.P. counters this contention with the help of the decision in Safiya v. State of Kerala (2009 (1) KLT
7). The learned D.G.P. contends that it is not necessary at all that the copies of all documents which accompanied the charge W.P.(Cri) No. 121 of 2010 -: 27 :- sheet must be furnished to the detenu under Art.22(5) of the Constitution or Sec.7(2) of the KAAPA. The learned D.G.P. points out that the scheme of the KAAPA is that one conviction of an offence under Sec.2(t)(i) - and two convictions for offences under Sec.2(t)(ii) and three findings of guilt after due investigation by the Investigating Officer of offences under Sec. 2(t) are all equated. When there is one conviction by a court under Sec.2(t)(i) or two convictions by a court under Sec.2(t)(ii) the detaining authority will not be entitled to go into the sufficiency of the materials justifying the conviction. By the same reasoning, the conclusion drawn by a police officer after due investigation of the commission of three Sec.2(t) offences by the detenu cannot be gone into by the detaining authority. In the light of the decision in Safiya (supra) the detaining authority has no obligation to go through all the documents which were relied on in support of the charge sheet, contends the learned D.G.P.
40. The learned counsel Sri.Anil contends that the said decision in Safiya (supra) can help the court only to conclude that all the materials filed along with the charge sheet need not be insisted to be produced to decide whether the detenu is a known rowdy or a known goonda under Sec.2(p) or Sec.2(o) of W.P.(Cri) No. 121 of 2010 -: 28 :- the KAAPA. Those are relevant only to decide whether the detenu is a known goonda or a known rowdy. But to decide the latter subjective satisfaction as to whether a detenu deserves to be detained, the detaining authority cannot rely on the satisfactions of others. Mind must be applied to the relevant materials and the detaining authority must come to a conclusion himself though subjectively that such detention is necessary. The fact that an Investigating Officer or Investigating Officers had come to conclusions about the complicity of the detenu in investigations conducted by them cannot be substituted for the subjective satisfaction which the detaining authority must entertain. In these circumstances, it is impermissible for the detaining authority to contend that the Investigating Officer had satisfied himself and filed a final report and therefore the detaining authority only looked into the final report.
41. We find merit in this contention raised by the learned counsel for the petitioner. Though for the purpose of deciding whether a person is a known rowdy or a known goonda satisfaction of the Investigating Officer under Sec.2(o)(ii) or Sec.2(p)(iii) may be sufficient, for the purpose of entertaining the latter subjective satisfaction we are certainly of the opinion that the detaining authority must himself be satisfied by a W.P.(Cri) No. 121 of 2010 -: 29 :- consideration of all materials that the detention of the detenu is necessary. The detaining authority we have no hesitation to assert cannot be a prisoner of the findings of the Investigating Officer. If that contention were accepted, the insistence on entertainment of the latter subjective satisfaction by the detaining authority would become illusory and unreal. We agree with the learned counsel for the petitioner and hold that the latter subjective satisfaction must be entertained by the detaining authority subjectively on the basis of the materials placed before the detaining authority. The conclusions of the Investigating Officer cannot be permitted to take the place of the subjective satisfaction of the detaining authority.
42. We are, however, unable to agree that copies of all documents accompanying the charge sheet must be furnished to the detenu as in the case of an accused who is entitled for copies under Sec.207 Cr.P.C. What is required is that the crucial documents which can instil in the mind of the detaining authority the requisite latter subjective satisfaction must be placed before such authority. We are unable to agree that all the documents accompanying the charge sheet must be placed before the detaining authority. Similarly, we are unable to agree that none of the documents accompanying the charge sheet need at W.P.(Cri) No. 121 of 2010 -: 30 :- all be placed before the detaining authority under any circumstances. We do not think it necessary in this case to go deeper into the question whether Safiya (supra) lays down the law correctly on this aspect. In an appropriate case the court may have to consider that question in greater detail. We are unable to understand Safiya (supra) as laying down the proposition that if a final report has already been filed, no other documents other than the final report in respect of the crime in question need be placed before the detaining authority. We would only mention that all necessary documents to induce the subjective satisfaction must be placed before the detaining authority. We will consider the question now whether such documents have been placed before the detaining authority. If such documents have been furnished, we would not think it necessary to make any reference to a larger Bench for considering the question as to whether Safiya (supra) lays down a proposition of law that no such documents need at all be placed before the detaining authority.
43. We shall now consider Sl.No.2 i.e., Crime No.491/09. In that crime at least all the relevant documents including the confession of the co-accused Balagopal has been placed before the detaining authority. We have gone through the relevant W.P.(Cri) No. 121 of 2010 -: 31 :- documents relating to Crime Sl.No.2 referred above. We have absolutely no hesitation to agree that the relevant documents referred above placed before the detaining authority are sufficient to induce the latter subjective satisfaction in the mind of the detaining authority that preventive detention of the detenu is essential in order to prevent him from committing anti-social activity. In these circumstances, though other documents which may have accompanied the final report, if one is ultimately filed, were not placed before the detaining authority, we come to the conclusion that sufficient materials to induce the requisite latter subjective satisfaction in respect of crime Sl.No.2 were placed before the detaining authority. In this view of the matter, we are unable to agree that the subjective satisfaction entertained by the detaining authority on the basis of crime Sl.No.2 referred above is vitiated or that the said conclusion is liable to be set aside by invoking our powers of judicial review.
44. Even in so far as Crime Sl.No.1 is concerned, we find that though all the documents which accompanied the charge sheet have not been furnished to the detenu sufficient materials have been placed before the detaining authority to entertain the latter subjective satisfaction. We take the view that the latter subjective satisfaction entertained by the detaining authority is W.P.(Cri) No. 121 of 2010 -: 32 :- also perfectly justified by the materials placed before the detaining authority. We have already referred to the relevant materials which were available before the detaining authority and copies of which were furnished to the detenu under Ext.P3.
45. It will not be inapposite straightaway to refer to the contention of the learned D.G.P. that even if case Sl.No.1 were to be excluded from consideration [for the reason that copies of the confession statement of the co-accused and other relevant documents were not placed before the detaining authority in respect of crime Sl.No.1], the order of detention is perfectly justifiable on the basis of the Crime No.491/09 (Sl.No.2). The learned D.G.P. contends that by the application of the principle under Sec.7(4) even if Crime No.382/09 were completely excluded, the latter subjective satisfaction can be supported and can be justified by Crime Sl.No.2 and the materials placed before the detaining authority in respect of that crime. We find force in that contention also. Either Crime Sl.No.1 or Crime Sl.No.2 or both, according to us, are sufficient to instil the requisite latter subjective satisfaction in the mind of the detaining authority and the challenge is found to be without substance on this aspect also.
46. No other contentions are raised under Ground No.2. W.P.(Cri) No. 121 of 2010 -: 33 :- We do, in these circumstances, answer Ground No.2 in favour of the respondents.
47. No other grounds are raised. We are satisfied, in these circumstances, that the impugned order of detention and the continued detention of the detenu do not warrant any interference. The challenge fails.
48. The learned counsel for the petitioner submits that it may be clarified that no observation in this judgment should, in any way, influence criminal courts when they ultimately take up the cases against the detenu for trial. Needless to say, no observation in this judgment shall be taken into consideration by criminal courts trying the offences alleged against the detenu. They should, in no way, be influenced by any observations made in this judgment.
49. In the result, this writ petition is dismissed.
R. BASANT (Judge) M.C. HARI RANI (Judge) Nan/